EXHIBIT 10.28
EXECUTION DRAFT
DISTRIBUTION & CO-MARKETING AGREEMENT
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THIS DISTRIBUTION & CO-MARKETING AGREEMENT (the "Agreement") is entered
into as of June 2, 1999 (the "Effective Date"), between XXXXXX.XXX, INC., a
Delaware corporation with an office located at 000 Xxxxxxxxxx Xxxxxx, Xxxx Xxxx,
XX 00000 ("xxxxxx.xxx"), and NORTHSIDE REALTY, a Georgia corporation with an
office located at 0000 Xxxxxxx Xx., Xxxxxxx, XX 00000 ("Company").
Xxxxxx.xxx and Company, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, agree as follows (definitions appear
in Additional Terms and Conditions):
1. In-Office Presentation Offer. Xxxxxx.xxx will make the following [*]
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available to Company's sales Agents through a xxxxxx.xxx account
representative during in-office presentations, and such [*] will only be
available on the day of such presentations and one Offer per customer. The
Offer will be available [*] Sales Agents must [*] "Basic Package" means four
scenes captured at a designated property placed on
xxxx://xxx.xxxxxxxxxxxxxxx.xxx. [*]
2. Xxxxxx.xxx Service. Xxxxxx.xxx will be responsible for receiving orders and
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invoicing and collecting revenues for sales of Production Services. Xxxxxx.xxx
will capture images at designated sites through its Service Provider Network and
process captured images to create Xxxxxx.xxx Images. Company will permit linking
of the Company Site to Xxxxxx.xxx Images, and the parties will use best efforts
to work together to implement this system within fourteen (14) days of the
Effective Date and maintain the system throughout the Term of this Agreement.
Additionally, Company will use commercially reasonable efforts to link each such
Xxxxxx.xxx Image to the appropriate listings on the Company Sites by the end of
the business day following the day xxxxxx.xxx makes such Xxxxxx.xxx Image
available on the xxxxxx.xxx server.
3. Exclusivity. Xxxxxx.xxx will be the exclusive provider of Virtual Tours
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Images for the Company Site. Company will not directly or indirectly promote
itself, or act, as a provider of Virtual Tour Images, nor will it promote,
display ads for or use the services of any third party acting in such capacity.
In addition, Company will not permit any Virtual Tour Images of any third party
w be posted to, linked to or otherwise made accessible through the Company Site.
4. Marketing and Promotion.
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Xxxxxx.xxx agrees to:
. Include Company, including use of its logo, as a partner on xxxxxx.xxx's
website and in marketing material, as xxxxxx.xxx deems appropriate;
. Participate in Company press release regarding use of xxxxxx.xxx Tours,
subject to xxxxxx.xxx's approval;
. Provide listing presentation kits, subject to Company approval, to agents
purchasing virtual tours as part of the above Offer;
. Educate each Company office on the benefits of using the Internet in real
estate and methods of integrating Xxxxxx.xxx Tours into the Sales Agents'
marketing strategy;
. Provide custom order forms for Sales Agents;
. Discuss other joint marketing opportunities, including collaboration on email
and direct marketing material from time to time.
Company agrees to:
. Hold an in-office presentation by a xxxxxx.xxx representative with each
Company office within the first ninety (90) days of the Effective Date.
. Company will send out a communication from a Company executive, including a
statement encouraging them to use xxxxxx.xxx's Production Services, to each
Sales Agent within the first thirty (30) days following the Effective Date.
Additionally, Company agrees to issue a press release regarding its use of
the xxxxxx.xxx Tours;
. Include an electronic order form and a description of the xxxxxx.xxx
Production Services on the Company Site that allows Sales Agents to submit
orders to xxxxxx.xxx via the Intranet. Maintain a gallery of Xxxxxx.xxx
Images on the Company Site;
. Include description demonstration of the xxxxxx.xxx Production Services, and
marketing materials in a Company sponsored training and seminar for Sales
Agents;
. When appropriate, include a Xxxxxx.xxx Xxxx and a brief, suitable reference
to the availability of the Production Services in the Company's print
advertising in magazines, flyers, newspapers and general mailings distributed
to clients and potential clients.
5. Term. This Agreement will commence on the Effective Date and continue for
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twelve (12) months, and will be automatically renewed for successive twelve (12)
month periods unless either party notifies the other in writing not less than
ninety (90) days prior to the end of the then-current term of its intention to
terminate this Agreement as of the end of such term. Upon termination or
expiration, each party will cease all use of marks and other intellectual
property of the other party. Either party may terminate this agreement without
cause upon a 180 day written notice to terminate.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
XXXXXX.XXX,INC. NORTHSIDE REALTY
By: /s/ Xxxxxx X. Loszlo By: /s/ Xxxxx X. Xxxxxx
_______________________________ ________________________________
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
Name/Title: Xxxx Xxxxxx, Xx. VP Business Development Name/Title: Xxxxx X. Xxxxxx, President
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ADDITIONAL TERMS AND CONDITIONS
1. Definitions.
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"Xxxxxx.xxx Image" means an electronic Image of a property produced by or on
behalf of xxxxxx.xxx.
"Xxxxxx.xxx Technology" means all Xxxxxx.xxx Images and software and hardware,
and including the Xxxxxx.xxx for Java Software, used to capture, process and
view Xxxxxx.xxx Images.
"Xxxxxx.xxx Tour" means the combined Production Services supplied by xxxxxx.xxx
with respect to a single Property.
"Company Sites" means the collection of HTML documents residing on servers
operated by error Company or its affiliates, including without limitation
Company's intranet, extranet and public website.
"Confidential Information" means any trade secrets, confidential data or other
confidential information, oral or written, totaling to or used in the business
of the other party (the "Disclosing Party"), that a party may obtain from the
Disclosing Party during the Term (the "Confidential Information").
"Production Services means the service provided by or on behalf of xxxxxx.xxx in
producing Xxxxxx.xxx Images.
"Sales Agent means any sales agent, sales representative or broker of the
Company.
"Service Provider Network" means the network of individuals throughout the
Company territory of operations with whom xxxxxx.xxx has entered into agreements
to capture images at designated sites on xxxxxx.xxx's behalf.
"Term" means the initial Term of this Agreement and the Renewal Terms, if any,
as set in forth in Section 4 on the first page of this Agreement.
"Virtual Tour Images" means 360 degree, three-dimensional, virtual reality,
virtual tour, virtual walkthrough or other similar images, or production
services for such images.
2. Confidential
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Each party agrees to treat the other party's Confidential Information with the
same degree of care as it maintains its own information of a similar nature.
Each party will use at least the same procedures and degree of care which it
uses to protect the confidentiality of its own Confidential Information of film
importance, and In no event less than reasonable care. The terms of this
Agreement will constitute Confidential Information, except to the extent that
xxxxxx.xxx discloses such information in good faith to a legitimate potential,
or actual, strategic investor, investment banker, venture capital firm or
consultant, or as required by status, regulation or other law.
3. Xxxxxx.xxx Technology
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3.1 Xxxxxx.xxx Technology will remain, the exclusive property of xxxxxx.xxx,
and no provision of this Agreement implies any transfer to Company of any
ownership interest in any Xxxxxx.xxx Technology.
3.2 Xxxxxx.xxx hereby grants to Company a nonexclusive, worldwide, royalty-
free nontransferable license to include links to the Xxxxxx.xxx images on
the Company Sites and Hosted Sites solely for the purposes contemplated
in this Agreement. Company will not distribute, modify edit, or prepare
derivative works from the Xxxxxx.xxx Images without the prior written
permission of xxxxxx.xxx. The foregoing license does to include any right
to grant or authorize sublicenses.
4. Trademarks.
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4.1 Xxxxxx.xxx owns and at all times will continue to own the trademarks,
service marks and/or trade names XXXXXX.XXX and the xxxxxx.xxx logo, as well as
any name or xxxx xxxxxx.xxx may subsequently adopt as a trade name or to
designate the Production Services (collectively, the "Xxxxxx.xxx Marks), and
Company will not take any actions inconsistent with xxxxxx.xxx's ownership
rights. Company owns and at all times will continue to own the trademarks,
service marks and/or trade names customarily used by Company during the Term
(the "Company Marks"), and xxxxxx.xxx will not take any actions inconsistent
with Company ownership rights. Each party's use of the other party's marks will
not create in the using party any right, title or interest therein or thereto,
and all such use will inure to the exclusive benefit of other party.
4.2 Subject to the restrictions set forth herein, xxxxxx.xxx hereby grants
Company a nonexclusive, worldwide, royal, fully paid up, nontransferable right
to use the Xxxxxx.xxx Marks, during the Term, with xxxxxx.xxx's prior written
approval, which xxxxxx.xxx will not unreasonably withhold or delay, solely in
connection with promotion and marketing of the Production Services and/or
Company financing. Subject to the restrictions set forth herein, Company hereby
grants financing. Subject to the restrictions set forth herein, xxxxxx.xxx a
nonexclusive, worldwide, royalty-free, fully paid up, nontransferable right to
use the Company Marks, during the Term, solely in connection with promotion and
marketing of the Production Services and/or xxxxxx.xxx financing. At the
reasonable request of either party, the other party will provide assistance with
the protection and maintenance of the marks of the requesting party. Each party
may only use the marks of the other party as expressly permitted herein and
agree, to use the marks of the other party in a manner commensurate with the
style, appearance and quality of the other party's services and/or products
bearing such marks.
5. Limitation on Grant of Rights
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Except as expressly provided herein, neither party receives any other right or
license to the technology or intellectual property of the other party.
6. Termination
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6.1 Upon termination or expiration, (i) Company and xxxxxx.xxx will cease all
use of marks of the other party and (ii) Company will cease all uses of the
Xxxxxx.xxx images and Xxxxxx.xxx for Java Software and will purge all Xxxxxx.xxx
for Java Software and Xxxxxx.xxx images from its servers.
6.2 This Agreement will terminate in the event a party breaches any material
term, condition or representation of this Agreement or materially fails to
perform any of its material obligations or undertakings hereunder, and fails to
remedy such default within sixty (60) days after being notified by the non-
breaching party of such breach or failure; provided, however, that the non-
breaching party will not unreasonably withhold or delay its consent to extend
the cure period if the breaching party has commenced cure during the sixty-day
notice period and pursues cure of the breach in good faith.
6.3 The provisions of Sections 2, 3.1, 4.1, 5, 5.1, 6.3, 7 and 8 of these
Additional Terms and Conditions will survive the expiration or termination of
this Agreement for any reason. All other rights and obligations of the parties
will cease upon expiration or termination of this Agreement.
7. No Warranties: Limitation of Liability
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XXXXXX.XXX MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED
WARRANTY OF MERCHANTABlLITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE ANY GOODS OR SERVICES PROVIDED BY THIS AGREEMENT. EXCEPT WITH RESPECT TO A
BREACH BY EITHER PARTY OF ITS OBLIGATIONS DESCRIBED IN SECTION 3 ON THE FIRST
PAGE OF THIS AGREEMENT OR SECTION 2 OF THESE ADDITIONAL TERMS AND CONDITIONS, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS OR ANY FORM
OF INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER FROM
ANY CAUSES OF ACTION OF ANY KIND WITH RESPECT TO THIS AGREEMENT WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR
NOT THE OTHER PARTY HAS BEEN ADVISED OF THE LIABILITY OF SUCH DAMAGE.
8 Miscellaneous
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Any notice required or permitted by this Agreement will be deemed given if sent
by registered mail, postage prepaid, addressed to the other party at the address
set forth within this Agreement. Delivery will be deemed effective three (3)
days after deposit with postal authorities. Nonperformance of either party will
be excused to the extent that performance is rendered impossible by storm,
blackout or other labor trouble, riot, war, rebellion, strike, fire, flood,
accident or other act of God, governmental acts, orders or restrictions, or any
other reason where failure to perform is beyond the control and not caused by
the gross negligence or willful misconduct of the non-performing party. The
relationship of xxxxxx.xxx and Company established by this Agreement is that of
independent contractors. This Agreement will be governed by and construed under
the laws of the State of California without reference to conflict of laws
principles. This Agreement together with all exhibit and attachments hereto,
sets forth the entire agreement and understanding of the parties relating to the
subject matter herein and merges all prior discussions between them. No
modification for amendment to this Agreement nor any waiver of any rights under
this Agreement, will be effective unless in writing signed by the party to be
charged, and the waiver of any breach of default will not constitute a waiver of
any other right hereunder or any subsequent breach or default. Neither party may
assign this Agreement or assign or delegate its rights and obligations under
this Agreement to a successor to all or substantially all of its business or
assets relating to this Agreement whether by sale, merger, operation of law or
otherwise. Company will not issue any press release regarding the subject matter
of this Agreement without the prior written approval of xxxxxx.xxx. This
Agreement may be executed by exchange of signature pages by facsimile an/or in
any number of counterparts, each of which shall be an original as against any
party whose signature appears thereon and all of which together shall constitute
one and the same instrument.
